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Decision No. 18,283

Appeal of PETER GETHERS from action of the Board of Education of the Sag Harbor Union Free School District regarding a capital reserve fund proposition.

Decision No. 18,283

(May 24, 2023)

King & Spalding, LLP, attorneys for petitioner, Lauren Friedman, Esq., of counsel

Volz & Vigliotta, PLLC, attorneys for respondent, Thomas M. Volz, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges certain actions of the Board of Education of the Sag Harbor Union Free School District (“respondent” or “board”) related to a capital reserve fund proposition.  The appeal must be dismissed.

In May 2021, respondent’s voters approved the establishment of a capital reserve fund.  Over a year later, on September 6, 2022, respondent held a special meeting in which it approved a legal notice to be published in connection with an upcoming referendum.  This referendum concerned a proposed purchase of property (“proposition one”) to be paid for with funds from the capital reserve fund.  Respondent subsequently published the legal notice in two local newspapers.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 21, 2022.

Petitioner argues that the notice published in two local newspapers did not comply with Education Law § 3651.  Petitioner further contends that respondent made multiple “partisan statements” in its September 6, 2022 special meeting that were designed to motivate voters to approve the proposed purchases.  For relief, petitioner seeks restoration of the capital reserve fund (contingent upon the public voting in favor of the purchase) and an order directing respondent to comply with Education Law § 3651 in the future.

Respondent argues that the petition should be dismissed as moot.  On the merits, respondent denies that any of its actions concerning the November 3, 2022 vote were improper. 

First, I must address a procedural matter. An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Petitioner commenced this action by service of the petition on October 18, 2022.  Thus, all claims arising more than 30 days prior to this date—including those related to the establishment of the capital reserve fund from which the funds were drawn and comments made at the September 6, 2022 special meeting—are untimely (Appeal of Bonnelli, 62 Ed Dept Rep, Decision No. 18,200; Appeal of Moss, 60 id., Decision No. 17,956).

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).

Petitioner challenges certain actions taken by respondent leading up to the November 3, 2022 referendum.  As indicated above, petitioner’s request for interim relief was denied on October 21, 2022.  The referendum occurred on November 3, 2022; proposition one was approved by a vote of 638 to 521.  Petitioner did not challenge the outcome of the vote thereafter.  Thus, no meaningful relief may be granted with respect to petitioner’s claims and the appeal must be dismissed (Appeal of Lombardo, 46 Ed Dept Rep 282, Decision No. 15,508).

Even if the appeal were not dismissed as moot, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884). 

Petitioner has failed to prove that the legal notice published in connection with proposition one violated Education Law § 3651.  As respondent indicates, Education Law § 3651 concerns the requirements attendant to the establishment of a reserve fund, not a subsequent proposition that draws upon such funds (see Appeal of Uy and Norden, 44 Ed Dept Rep 424, Decision No. 15,219).[1]  Petitioner has otherwise failed to demonstrate how respondent’s legal notice did not meet the notice requirements of Education Law §§ 2004 and 2007 (see Appeal of Vera, 56 Ed Dept Rep, Decision No. 17,077).

In light of the foregoing disposition, I need not address the parties’ remaining contentions.




[1] As indicated above, respondent’s capital reserve fund was created in May 2021.  Any challenge thereto would be untimely.